Constitutional
Law Class Notes
More on preemption
When
we left off yesterday, we said that constitutional law can’t tell us when a federal
statute preempts state law, because the Constitution only tells us that when
there’s a conflict, there is the effect of preemption. But how do we know if there’s a
conflict? Where do we look, if not in
the Constitution, to find out if there’s a conflict, and thus if there is preemption?
We
could look at the text of the statute or legislative history. If the statute expressly states that it is
meant to preempt state law, then you’ve got a good case for preemption. That’s express
preemption. That’s one of Chemerinsky’s categories.
Congress has the power to preempt state laws that it doesn’t like as
long as it is acting within its sphere of authority. So the first thing to do is to look for that congressional
indication that they want to preempt, and see if they’ve done so.
But
there’s an even bigger point: preemption is ultimately a matter of federal statutory
law, not federal constitutional law! We
ought to be learning about preemption in Legislation! The answer to finding out whether there is preemption
in a given case will be found in the text of the statute in question. But we’re studying it here, so there.
In
this area of “Constitutional Law”, we’re trying to figure out what Congress wants, not what the original Constitution wants. So this is a bit different!
Preemption is not a question
of constitutional law!!! The constitutional part is
quick, easy, and automatic. If we know
what Congress wants, and Congress wants to preempt, then we have preemption. That’s it!
This class is mostly about interpreting the Constitution, but the
nitty-gritty of preemption is not at all
about figuring out what the Constitution wants.
But
then the question is: just how closely do we stick to the text? Should we look at legislative history?
The
Constitution says that state laws that are contrary to federal law are null and
void and must give way. But that’s the
only guidance we get in this matter.
Did
the Medicaid statute expressly preempt the Maine Rx program? No, there was no express preemption
provision. Medicaid could have expressly preempted state laws. But they didn’t. That creates a natural presumption against preemption. If Congress doesn’t use a power that it could you, you might suppose that they didn’t use that power for a reason.
How
does the Supreme Court as a judicial body understand what Congress is doing or
not doing? How does the Supreme Court
interpret signals from Congress? Maybe
there are some overarching separation of powers
principles involved. That’s what the Legislation
class is about, though! So Foley says
that we should go ask Brudney!
First,
there is express preemption. There are three kinds of implied preemption:
(1) field preemption, (2) conflict preemption (physical impossibility),
and (3) interference or obstacle preemption (state law
interfering with federal objectives).
It’s
possible for the drug companies to comply with Maine Rx in a way such that they
are still in compliance with the federal Medicaid program. Therefore, there was not conflict preemption
in that case.
This
is an example where states have actually been invited into the regulatory
scheme. Thus, we can’t have field preemption
either.
Therefore,
the only possibility is that the state law doesn’t conform to the federal
law. The state law is called an “obstacle”
to the federal law. Is the state law
such that Congress wouldn’t want it to exist?
Congress didn’t say so explicitly.
But is Maine Rx such an obstacle that Congress wouldn’t want this
obstacle or this interference? The only
way to answer this question is to study the intent of Congress.
How
should the Court figure out whether Maine Rx is an obstacle to Medicaid?
The
drug companies claim that Maine Rx interferes with and is an obstacle to the
long-extant federal Medicaid program. How
do we figure out whether the drug companies are right or wrong? What’s the method?
Chemerinsky
proposes one method. If there is a claim
of obstacle preemption, you must know (1) what the federal objective is, and
(2) what the purpose of the state law is.
When
you have a claim involving obstacle preemption, you have to know the
facts. You must know what’s really going
on. We need a good deal of substantive
knowledge about how the state law works.
We also need information about the purposes of the federal law. Then we can ask whether what’s happening
under the state law is in conflict with the federal law.
Is
it consistent with the federal Medicaid program for Maine Rx to use the prior authorization
provisions in the way that they do? Can
we use the prior authorization provision as leverage against the drug
companies?
What
are the purposes and objectives of Medicaid?
Is it out of sync with Medicaid to use it in the way Maine Rx does? These are not constitutional questions. The answers will come from studying and
thinking about Medicaid and thinking
about what Medicaid needs and wants and why it exists.
If
five members of the Supreme Court reach the judgment that it is inconsistent
with having Medicaid the way Congress structured it to have Medicaid “hijacked”
for this ancillary use, then we have a judgment that the Congress that wanted
Medicaid doesn’t want this hijacking!
Then preemption follows…BAM!
But
it’s still possible to comply with the hijacking without violating
Medicaid. That’s why
this is not a case of conflict preemption. It’s not a physical impossibility situation.
Ever
since the beginning of the country, the Supreme Court has been absolutely
uniform in stating that if Congress is acting within its authority, state laws
that conflict with what Congress is doing are preempted. This can’t happen unless Congress has the
power in the first place.
The
Maine Rx program is not necessarily
an obstacle to the operation of Medicaid.
There isn’t enough evidence in the record for the district court to
strike down Maine Rx as an obstacle that is inconsistent with the purposes of
Medicaid.
Imagine
if the
The
Supreme Court, when you add up the plurality, they say that the actual program
is less extreme than the hypothetical example.
It could be that Maine Rx’s purpose in helping the people “in the gap”
is consistent with the purpose of Medicaid.
For example, if the people in the gap don’t get benefits and get sick,
they might become poor and sick enough to go on Medicaid and cost that program
more money.
There’s
also a federal agency involved: the Department of Health and Human
Services. This department has been given
the authority to review state Medicaid plans and procedures. That department has not ruled out
(1)
You gotta know
the facts on the ground. (2) You gotta look at constitutional
purposes and objectives.